Decision of the Human Rights Committee under article 5 (4) of the
Optional Protocol to the International Covenant on Civil
and Political Rights -thirty-fourth session
concerning

Communication No. 164/1984

Submitted by: Gilberto François Croes, deceased, and his heirs

Alleged victim: G. F. Croes

State party concerned: The Netherlands

Date of communication: 11 January 1984 (date of initial letter)

The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights:

Meeting on 7 November 1988,

Setting aside, pursuant to rule 93, paragraph 4, of its provisional rules of
procedure, an earlier decision on admissibility, dated 25 October 1985,

Adopts the following:

Revised Decision on Admissibility

1. The author of the communication (initial letter dated 11 January 1984 and
further letters dated 18 May, 8 June and 27 September 1984 is the late Gilberto
Francois Croes, a native of the island of Aruba. Mr. Croes was the leader of
the People's Electoral Movement (Movemento Electoral di Pueblo, MEP) of Aruba.
When Aruba achieved the status of a self-governing country within the Kingdom
of the Netherlands, on 1 January 1986, the author was elected a member of the
Parliament of Aruba. On 26 November 1986, as a result of an automobile accident,
the author passed away. By letter of 29 June 1988 his heirs requested the Committee
to continue examination of the case. They are represented by counsel.

2.1 It is stated that the author founded the MEP in 1971 and that the party
has been proposing Aruba's independence since 1972. Because of his political
activity he was allegedly subjected to harassment, accusations of being radical
and revolutionary as well as to physical threats and attacks by various political
opponents; he deposited complaints with the prosecuting authorities for slander
and other offenses, but it is claimed that he was denied reasonable satisfaction
and that the authorities have condoned these violations.

2.2 In connection with the preparation for the elections of the Island Parliament
in April 1983, the MEP, which reportedly had been the majority .party through
six elections, (in the November 1985 elections, the MEP lost its majority),
was denied permission to hold a parade, apparently on the ground that the relevant
request submitted by the MEP had disappeared. The author was allegedly led to
believe by police authorities that no obstacle would be laid if he were to hold
the parade, but, on 24 April 1983, an order was given
by the police authorities to break up the MEP parade and a policeman shot the
author in the chest two inches below the heart. He was operated on and subsequently
flown to a hospital in Miami, United States, where he underwent a second operation.
It is further alleged that the policeman who did the shooting has not been prosecuted,
although the author requested his prosecution on 11 June 1983 and again on 16
November 1983 in a complaint to the Judge of First Instance in Aruba. After
the judge rejected prosecution on
22 December 1983, the author directed a request to the Supreme Court of the
Netherlands Antilles, which, on 24 February 1984, declared the author's request
inadmissible. It is thus claimed that domestic remedies have been exhausted
with respect to this allegation, and that "the duration of the investigation
itself had taken much too long, unreasonably long in the terminology of the
Optional Protocol".

2.3 The author alleged, particularly, that his right to life, his right to
being treated equally and his right to see others treated equally under the
laws Of the Netherlands Antilles was violated by the authorities of the Netherlands
Antilles and of the Netherlands. He further alleged that the right to self-determination
of the Aruban people was threatened with gross violation by the authorities
concerned.

3. In response to a request for further information, the author, in a letter
dated 27 September 1984, stated that the alleged attempt on his life "was
the result of a conspiracy, inspired to kill me as a leader of the Aruba independence
movement", and gave details on another shooting incident and on an alleged
raid on his parents' home in August 1977.

4. By its decision of 26 October 1984 the Human Rights Committee transmitted
the communication under rule 91 of the Committee's provisional rules of procedure
to the State party, requesting information and observations relevant to the
question of the admissibility of the communication.

5.1 In its submission dated 28 May 1985, the State party presented the facts
as follows:

"The complainant, Mr. Gilberto François Croes, is the leader of a political
party on the island of Aruba. Aruba is one of the islands
which together constitute the Netherlands Antilles. The Netherlands Antilles
is a part of the Kingdom of the Netherlands, consisting of two self-governing
countries, the Netherlands and the Netherlands Antilles.

The political party of which Mr. Croes is the leader strives for an independent
status of Aruba.

On 24 April 1983, during disturbances surrounding a car parade on the island
of Aruba, held by Mr. Croes' political party without the
required permission from the authorities, Mr. Croes was wounded by a pistol
shot. He alleged that the shot was deliberately fired by a policeman.

On 26 May 1983, the Minister of Justice of the Netherlands Antilles appointed
a Committee of Inquiry to investigate the actions and conduct of the police
during the events that took place on 24 April. This investigation was concluded
on 8 July 1983. The Committee of Inquiry concluded that the police forces serving
that day had shown sufficient self-restraint and self-discipline.

The Committee of Inquiry purposely did not go into the question whether the
shot that wounded Mr. Croes was in fact fired by a policeman, and if so, whether
the policeman could be held guilty of this fact, in view of the forthcoming
investigations by the prosecuting authorities into these questions. The prosecuting
authorities in their investigations came to the conclusion that there was no
proof of premeditated or deliberate Or intentional firing on the part of [the
policeman], and moreover that there was even no proof of guilt on the part of
[the policeman] that his gun fired the shot which hit Mr. Croes. For this reason
the case against [the policeman]was dropped.

On 16 November 1983, M r. Croes filed a request with the court in first instance,
requesting the prosecution of [the policeman]. The
court, in a decision dated 12 December 1983, supported the Public Prosecutor's
Decision not to prosecute [the policeman], and rejected the request of Mr. Croes.
Mr. Croes then, on 12 January 1984, filed a complaint with the Court of Justice
of the Netherlands Antilles, which was rejected on grounds of form."

5.2 With regard to the rights invoked by the author, the State party addresses
itself to alleged violations of the following rights:

" (a) his right to life',

(b) his right to being treated equally',

(c) his right to see others treated equally',

(d )'the right to self-determination of the Aruban people',

(e )furthermore a complaint in a letter of Mr. Croes' lawyer

dated 18 May 1984, 'that the duration of the investigation itself had taken
much too long, unreasonably long'. It is unclear whether this complaint refers
to the treatment of Mr. Croes himself or the treatment of the [policeman]. In
the latter case, this part of the communication would in any case be inadmissible
under -1 Of the Committee's Rules.".

5.3 With regard to the question of admissibility, the State party "starts
from the assumption that Mr. Croes can be supposed to be invoking articles 6,
14, 26 and article 1 of the International Covenant on Civil and Political Rights.
As for his 'right to see others treated equally', the Government cannot find
an article in the Covenant protecting such a right. Confronted with the question
whether the Government considers Mr. Croes' communication to be admissible,
the Government, to its regret, has to reply in the negative, for the following
reasons:

Firstly, the communication indicates an abuse of the right to present a communication,
for political and propagandistic motives. Mr. Croes is the leader of a political
party propagating a 'status apart for the island of Aruba. His principal accusation
is that , as a political leader, he was discriminated by the prosecuting and
judicial authorities of the Kingdom of the Netherlands. A complaint based on
article 26 of the Covenant could only be made on the basis of an allegation
that either the prosecuting authorities or the courts applied the laws to Mr.
Croes in a discriminatory way. Though Mr. Croes does indeed accuse the authorities
of a 'conspiracy' against him, and apparently fears that this spirit of conspiracy
has even reached the Judicial Laboratory at Rijswijk in the Netherlands, he
fails to bring any concrete evidence in support of his accusations and insinuations.

Secondly, Mr. Croes failed to exhaust the available domestic remedies with
respect to his complaints under the Covenant. What he did submit to the national
authorities were:

(a) a protest against the decision not to prosecute [the policeman],

(b) a protest against the decision not to prosecute Mr. Croes himself on charges
of perjury and holding a car parade without a permit.

However, Mr. Croes failed to invoke before the national authorities any of
the Covenant's rights mentioned above. Of these rights, at least the articles
6 and 14 are, in accordance with article 93 of the Constitution, 'self-executing'
in the sense that they can be invoked by individuals before the national courts.
In this way the Constitution provides an important 'available domestic remedies
in the sense of article 5, paragraph 2 (b), of the Optional Protocol. Thirdly,
Mr. Croes' allegation that the investigating procedures took too long cannot
be brought within the scope of article 14, paragraph 3 (b)of the Covenant, because
Mr. Croes was not in the position of a person 'charged with a criminal offense'
within the meaning of that provision. Fourthly, a complaint based on article
6 of the Covenant appears to be made as a result of allegations that:

(a) the shots which wounded Mr. Croes were deliberately fired by a policeman
in a premeditated attempt to kill him, and

(b) that the prosecuting and judicial authorities joined in efforts to cover
up this fact and to protect [the policeman]from the normal administration of
justice.

Mr. Croes fails to submit any evidence in support of such allegations. Lastly,
Mr. Croes cannot claim a right to invoke article 1 of the Covenant without submitting
even a beginning of evidence to the effect that:

(a) the people of Aruba claim to be the victim of a violation of article 1
of the Covenant by the Kingdom of the Netherlands,

(b)this people has authorized Mr. Croes to submit on its behalf a complaint
under article 1 of the Covenant,

(c)the Kingdom of the Netherlands has violated article 1. In this respect it
is significant that Mr. Croes' lawyer in paragraph 28 of his letter of 11 January
1984, does not as yet allege an actual violation of article 1, but 'a threat'
to the right of self-determination. This raises the question whether a possible
future violation of a right protected by the Covenant could be the object of
a complaint under the Optional Protocol. The Government answers this question
in the negative. For the reasons submitted in the foregoing paragraphs the Government
of the Kingdom of the Netherlands submits that the communication of Mr. Gilberto
Francois Croes is inadmissible under rule 90, paragraphs 1 (b), 1 (c), 1 (d)
and 1 (f) of the Committee's Rules of Procedure.".

6.1 Before considering any claims contained in a communication, the Human Rights
Committee must, in accordance with rule 87 of its provisional rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2 Article 5, paragraph 2 (a), of the Optional Protocol precludes the Committee
from considering a communication if the same matter is being examined under
another procedure of international investigation or settlement. There was no
indication that the case was under examination elsewhere.

6.3 Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee
from considering a communication unless domestic remedies have been exhausted.
In this connection the Committee recalled that in its decision under rule 91
of its provisional rules of procedure it requested the State party, in case
it would contend that domestic remedies had not been exhausted, "to give
details of the effective remedies available in the particular circumstances
of this case, '. The Committee noted that in its submission of 28 May 1985 the
State party contended that the author had failed to exhaust domestic remedies.
It mentioned the steps taken by Mr. Croes, but did not specify what effective
local remedies would have been available in the circumstances of this case,
had Mr. Croes specifically invoked articles 6 and 14 of the Covenant in his
submission of complaints to the national authorities. The Committee noted that
the steps taken by the author to exhaust domestic remedies ended with the rejection
of his appeal to the Supreme Court of the Netherlands Antilles on 24 February
1984. In the absence of any clear indication from the State party concerning
other effective domestic remedies which the author should have pursued, the
Committee concluded that it was not precluded by article 5, paragraph 2 (b),
of the Optional Protocol from considering this case, but indicated that this
conclusion could be reviewed in the light of any further information submitted
by the State party under article 4, paragraph 2, of the Optional Protocol.

6.4 The Committee noted the State party's contention that the communication
indicates an abuse of the right of submission. However, the Committee found
that the grounds invoked by the State party in this connection did not appear
to support such a conclusion.

7. On 25 October 1985, the Human Rights Committee therefore decided that the
communication was admissible in so far as Mr. Croes claimed to be personally
affected by the events which he described (as set out in paras. 2.2, 2.3 and
3 above), and in so far as these events could raise issues under articles 6,
9, paragraph 1, first sentence, 19, 21, 25 and 26 of the Covenant.

8.1 In its submission under article 4, paragraph 2, of the Optional Protocol,
dated 16 May 1986, the State party, elaborating on its submission of 28 May
1985, reaffirms that the author failed to exhaust the domestic remedies that
were available to him. It states that the author, in his initial action brought
against the State party failed to invoke the self-executing provisions of the
International Covenant on Civil and Political Rights. The State party's obligations
under the Covenant were invoked for the first time before the Human Rights Committee.
Furthermore, he could have initiated civil proceedings against the State alleging
tort. The State party submits that the courts would have dealt with his complaints
based on the Covenant except his allegation of a violation of the right 'of
self-determination under article 1. Had the author acted as indicated above,
he could have exhausted all domestic remedies up to and including the highest
judicial authority in the Kingdom, the Supreme Court (Hoqe Raad), and thus met
the requirements of article 5, paragraph 2 (b), of the Optional Protocol.

8.2 With respect to the merits of the communication, the State party submits
that there has not been any violation of the rights invoked by the author. Concerning
article 6, it recalls that after due investigation the prosecuting authorities
in Aruba concluded that there was no evidence whatsoever of premeditated or
intentional firing on the part of the police officer, that there was no proof
that the shot which wounded Mr. Croes had been fired from the police officer's
gun, and that for that reason the case against the police officer was dismissed.

8.3 Concerning the alleged violation of article 9, paragraph 1, the State party
affirms that it did not violate the author's right to liberty and security of
person. It explains that the police forces that were on duty in Aruba on 24
April 1983 sought to uphold law and order, to prevent disorder and to protect
all people, including the author, against any form of bodily harm. In this context,
the author was neither deprived of his liberty nor of his security. The police
forces on duty on the said day were not only sufficiently trained but also displayed
behaviour which enabled them to fulfill their duties in every respect. Disturbances
resulted because the MEP held a motorcade without permission and partly because
of the behaviour of MEP supporters.

8.4 With respect to articles 19, 21 and 25 of the Covenant, the State party
rejects the allegations put forth by the author. It points out that Mr. Croes
exercised all his democratic rights to express political views, to found a political
party and to be elected to the Parliament of the Netherlands Antilles. No violation
of article 19 can thus be said to have taken place. In respect of article 21,
the State party points out that under the laws of the Netherlands Antilles and
Aruba, anyone who wishes to organize a manifestation on public roads must seek
and obtain permission from the competent authorities. L/In the present case,
the request for authorization to hold a motorcade filed by the author's party
did not reach the authorities, which is why permission to hold a parade was
given to another political party. The author's party was, however, granted permission
to hold a demonstration. In the interest of public order, the police broke up
the motorcade which was held after the demonstration. The State party submits
that the regulations in question are compatible with article 21, since the requirement
of prior permission to hold public demonstrations is a restriction made in conformity
with the law and necessary in the interest of public order. Concerning article
25, the State party summarizes the electoral system in force in the Netherlands
Antilles and Aruba at the same time of the submission of the complaint, and
emphasizes that the author's rights and the rights of his party under that article
were in no way restricted.

8.5 Finally, with respect to the alleged violation of article 26, the State
party refers to the decision of the Court of Justice of the Netherlands Antilles
of 24 February 1984 and argues that the Court's considerations do not reveal
that Mr. Croes was discriminated against.

9.1 Commenting on the State party's submission, the author's heirs, in a submission
dated 29 June 1988, maintain that their father's initial allegations are well
founded and that he did indeed exhaust all the domestic remedies available to
him. In particular, they claim that the State party's argument that the author
should have initiated civil proceedings against the Netherlands does not address
his concerns, since monetary compensation cannot do away with the human rights
violations of which the author was a victim, and which in their opinion still
warrant criminal prosecution. Furthermore, they claim that Mr. Croes did not
have to invoke international treaty norms and obligations of the State party
, since the courts should have applied them ex officio. They claim in that context
that the author, in his memorandum to the Supreme Court of the Netherlands dated
10 January 1984, did in fact invoke the Covenant.
9.2 With respect to the alleged violation of articles 6 and 9, paragraph 1,
the author's heirs reiterate that the shot fired by [name deleted]which wounded
the author was part of a premeditated plot against the author's life. They affirm
that the "heavily armed police corps,, intended to "victimize"
the unarmed MEP loyalists, to cause Aruban citizens to turn against Aruban citizens,
which in turn would provide a pretext to postpone the elections scheduled by
the Government of the Netherlands Antilles. They deny that MEP supporters acted
in any way that could be construed as aggressive during the motorcade and affirm
that the parade was held following discussions with the highest police officer
on duty on 24 April 1983.

9.3 With respect to the alleged violations of articles 19 and 21, the author's
heirs claim that the State party's argumentation reflects an exceedingly narrow
interpretation of the scope of these articles. They take issue with the State
party's submissions concerning article 21 (see Para. 8.4 above) and reiterate
that the motorcade was broken up only after it had proceeded for several hours
and covered approximately 20 miles, and that there was no danger of crossing
the motorcade of a rival political party. Thus there was no basis for prohibiting
and/or breaking up the parade.

9.4 Concerning an alleged violation of article 25, the author's heirs challenge
without further substantiation the State party's claim that the rights of the
author and of his party were in no way restricted. In respect of article 26,
finally, they maintain that, under the pretext of justice, the author did suffer
from discrimination because of the inadequate investigation of the shooting
incident and the authorities*effort to hold back evidence. In other words, the
discrimination is said to have consisted in the authorities' attempt to "cover
up, 'the case of the police officer.

10. Pursuant to rule 93, paragraph 4, of its provisional rules of procedure
and in accordance with its decision of 25 October 1985, the Human Rights Committee
has reviewed its decision on admissibility of 25 October 1985. On the basis
of the additional information provided by the State party in its submission
of 16 May 1986, the Committee concludes that there would have been effective
remedies available to the author both' with respect to the shooting incident
and the break-up of the motorcade. The Committee has stressed on previous occasions
that remedies, the availability of which is not evident, cannot be invoked by
the State party to the detriment of the author in proceedings under the Optional
Protocol (Communication No. 113/1981, decision of 12 April 1985, para. 10.1).
In this case, however, the Committee comes to the conclusion that remedies were
evident. It would have been open to Mr. Croes to institute civil proceedings
against the State party and to claim compensation for the damages suffered as
a result of the alleged failure Of the State party to fulfill its obligations
under the International Covenant On Civil and Political Rights. It is true that
he claimed that this type of recourse would not address his concerns. In this
context, the Committee observes that although States parties are obliged to
investigate in good faith allegations of human rights violations, criminal proceedings
would not be the only available remedy. Accordingly, the Committee cannot accept
the argument of the author and his heirs that proceedings before the Aruban
courts, other than those leading to the criminal prosecution of the policeman,
do not constitute effective remedies within the meaning of article 5, paragraph
2 (b), of the Optional Protocol. The Committee adds that the authors' complaint
could be directed, in all of its aspects, against the Aruban authorities in
general and that he and his heirs have failed to pursue all avenues of judicial
recourse open to them.

11. The Human Rights Committee therefore decides that:

(a) The decision of 25 October 1985 is set side;
(b) The communication is inadmissible;

(c) This decision shall be communicated to the heirs of Gilberto François Croes
and to the State party.